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Printer Benjamin Franklin apprenticed with his brother James in Boston. As a journeyman printer in Philadelphia and in England, Franklin absorbed the fragments of knowledge that made him one of the most heroic figures of an heroic age. With a fellow workman named Hugh Meredith Franklin started his own publishing house, purchased the Pennsylvania Gazette and made it liberal and clever, and started Poor Richard's Almanack that made Poor Richard into wealthy Ben. One of the cleverest men of all time, he used his printing press to argue for the financial changes which might have saved the Colonies for England, pamphleteered for the formation of a Pennsylvania militia, and ultimately, for the independency for the American States. Franklin encouraged Paine to come to the new world in 1774, to become the editor of the Pennsylvania Magazine. Another man for the age, Paine helped to create the new

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nation and served as a volunteer pamphleteer in the Army during the War of Independence.

Newspaper-printers served an eminently active part in the American Revolution. The editor of the Pennsylvania Journal, a later William Bradford, served as a soldier and editor of the Revolution. During the British occupation of New York, revolutionary newspapers were printed further up the Hudson River. When Newport, Rhode Island was captured by the British, the printer Solomon Southwick buried his press and type. After the British were driven out the printer exhumed his tools and with difficulty continued

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EXHIBIT D

THE COPYRIGHTABILITY OF TYPOGRAPHY AND REGULATION SECTION 202.1(a)

(By Harriet L. Oler, Attorney for Examining; July 1971, September 1972; Docket No. T-7)

GENERAL INTRODUCTION

Section 202.1(a) of the Regulations of the Copyright Office (as amended through April 21, 1966) lists among the material not subject to copyright “mere variations of typographic ornamentation, lettering or coloring . . ." The validity of this Regulation has been called into question as a result of recent applications for registration of claims to copyright in various allegedly original type fonts and colored designs.

Office practice heretofore has been to reject, as not containing sufficient authorship to support a registration, (1) any form of lettering or typography other than "[a] decorative letter" that "can stand by itself as a drawing, etching, or print" and (2) "color combinations of the same basic design." It has been suggested at recent Register's Conference and Examining Division Conference meetings that the Office depart from these practices to register both "typography" and "coloring."

With a view toward examining the legality and desirability of changing our Office practices in these areas, I have been asked to prepare "a study that would result in a clear statement interpreting the meaning of [this portion of] the Regulation today in light of cases and developments since 1954." The study does not re-evaluate Office practices concerning material presently considered registrable as works of art: viz, decorative letters and the like.

Mrs. Harris, of the Arts Examining Section, has been asked to prepare a concurrent report on recent trends in modern art. Hopefully, my study will unearth the legal groundwork upon which a fresh, uniform set of Office practices regarding "typography" and coloring can be constructed.

I. INTRODUCTION

Preliminary to this discussion of the copyrightability and registrability of what is denoted, both in practice and in regulation, “typography," it seems useful to pinpoint precisely what is embraced by this term, and to establish the terminology to be used throughout the report. The term as generally used in the copyright context comprises three separate printing products, each of which involves different copyright concepts and each of which will be treated separately in the context of suggested Office practices. It is assumed that the word "typography" as used in the current regulation embraces all three."

The first type of product commonly included in the term "typography" is a type face or character. A type face, according to Webster, is "[t]he face of a type, especially with reference to its shape, form, model, or character." As used here, the term denotes the visual image of a single letter.

The second of these products, type font, embrances "[a]n assortment of type of one size and style. . . ." It includes the sum total of the letters in a particular type style, regardless of their position or order of combination on a page.

Finally, "typography" generally comprises what Webster specifically calls typography: "... the style, arrangement, or appearance of matter printed from type." It refers to the layout or appearance of a particular printed page, rather than to the specific style of type or shape of individual letters thereon. The copyrightability of these types of material, and particularly of type fonts,

1 Copyright Office Regulations, 37 C.F.R. § 202.1(a) (1966).

2 Memo from H. Oler to R. Glasgow on "Non-Registrability of Typography: the Appeal". Oct. 28, 1969 (unpublished collection of Oler memos found in the Copyright Office Library).

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3 Memo from R. Glasgow to A. Goldman on "Disposition of the Work Entitled 'Alphabet "Jan. 12, 1971 (unpublished inter-Office memo).

4 Ibid.

Memo from R. Glasgow to H. Oler on "Typefaces and Coloring: Analysis of Section 202.1(a) of the Regulations Prohibiting Copyright in 'mere variations of typographic ornamentation, lettering or coloring," Mar. 10. 1971 (unpublished inter-Office memo). Webster's New International Dictionary (2d Ed. 1946).

7 Ibid.

s Ibid.

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